Lead Opinion
ORDER AND JUDGMENT
Jared Taylor appeals following a jury verdict finding him liable for violating Mark Plascencia’s Fourth Amendment rights. Taylor raises four arguments on appeal: (1) the district court erred in denying his motion for judgment as a matter of law under Federal Rule of Civil Procedure 50; (2) the district court committed reversible error when it submitted Instruction No. 24A to the jury; (3) there was insufficient evidence to support the jury’s verdict; and (4) he is entitled to qualified immunity on Plascencia’s seizure claim. We conclude that the district court did not err in denying Taylor’s motion for judgment as a matter of law or in submitting the jury instruction, that Taylor’s assertions of insufficient evidence were not properly preserved for our review, and that Taylor is not entitled to qualified immunity. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I
On April 29, 2006, Officer Jared Taylor of the City of St. George, Utah, police
A short time later, Mark Plaseencia and Duran Jacob Rubio arrived at the Pizza Hut to retrieve Plascencia’s phone. Plas-cencia and Rubio were co-workers, and Plascencia’s work phone had gone missing earlier that day. When Taylor approached the men, Plaseencia identified himself as the owner of the phone. Taylor grabbed Plascencia’s hands, cuffing them behind his back. Plaseencia cried out in pain and informed Taylor that the handcuffs were too tight and that he had arthritis in his hands and wrists. Taylor later testified that when he handcuffed Plaseencia there was no evidence that Plaseencia was carrying a weapon, threatening anyone, resisting arrest, or attempting to flee; rather, he had handcuffed Plaseencia because Plaseencia was a felony burglary suspect.
Taylor then pushed Plaseencia outside of the restaurant by his cuffed hands. Rubio and Plaseencia testified at trial that Taylor proceeded to use a baton-like stick to hit Plaseencia on the inside of his legs to spread them. As Taylor searched Plas-cencia for weapons, he continued to raise Plascencia’s arms behind his back, and Plaseencia again cried out in pain. Finding no weapons, Taylor removed the handcuffs. At approximately the same time, Plaseencia passed out and fell towards the ground. Plascencia’s fall was broken by either Rubio or both Rubio and Taylor.
Plaseencia was taken by ambulance to the Dixie Regional Medical Center. Doctors were concerned that Plaseencia had suffered a heart attack and kept him overnight for observation.
Two days after the incident, Plaseencia met with Sergeant Vance Bithell, who was conducting an investigation into the encounter for the St. George Police Department. Plaseencia informed Bithell that Taylor had hit him. Bithell took photographs of bruises on Plascencia’s legs that were caused either by Plascencia’s fall or Taylor’s stick, which were entered into evidence at trial.
In his 42 U.S.C. § 1983 suit, Plaseencia alleged that Taylor violated his right to be free from unreasonable searches and seizures.
At the close of evidence Taylor moved for judgment as a matter of law, asserting
The jury found that Taylor had unreasonably seized Plascencia and had used excessive force, and awarded Plascencia $5,000 in damages. Taylor timely appeals.
II
A
Taylor claims the district court erred in denying his motion for judgment as a matter of law under Fed.R.Civ.P. 50. He contends that the district court should have concluded that the seizure was an investigatory stop supported by reasonable suspicion. The district court denied Taylor’s motion, holding that there was a dispute over what occurred before Taylor handcuffed Plascencia, how much force Taylor used, and how long the detention lasted.
Judgment as a matter of law is appropriate if the “evidence presented at trial does not permit a reasonable jury to find for the non-movant.” Manzanares v. Higdon,
Taylor advances two arguments in support of his Rule 50 motion. First, he argues that the district court erred in considering the degree of force employed by Taylor in its determination of the type of seizure that occurred. Second, he argues that the facts the district court cited as in dispute, with the exception of the length of the detention, were immaterial to the court’s determination of whether an arrest or an investigative stop took place. Based on these assertions, Taylor argues the jury’s verdict as to unlawful seizure was unsupported by the evidence.
The Fourth Amendment protects individuals from “unreasonable searches and seizures.” U.S. Const. amend. IV. The Supreme Court “has identified three types of police/citizen encounters: consensual encounters, investigative stops, and arrests.” Cortez v. McCauley,
Use of forceful measures does not automatically convert an investigative detention into an arrest. See United States v. Shareef,
Taylor contends that our extensive precedent considering the use of force in determining whether a seizure was an arrest or an investigatory stop confuses the validity of a seizure with the reasonableness of its scope.
Taylor also contends that the facts material to the district court’s determination of whether the seizure was a stop or an arrest were not in dispute. As discussed above, however, the level of force employed is an important component of our inquiry. See Cortez,
Finally, we agree with the district court that the evidence was sufficient to uphold the jury’s verdict as to unlawful seizure. Viewing the evidence in the light most favorable to Plascencia, the jury could have concluded that Taylor: (1) immediately handcuffed Plascencia without any objectively reasonable officer safety concern; (2) applied several forceful techniques by repeatedly lifting Plascenicia’s arms behind his back and repeatedly striking Plascencia’s legs, again without any objectively reasonable safety concerns; and (3) forcefully moved Plascencia from the restaurant to a different location without any reasonable basis for doing so. See Cortez,
Taylor next appeals the district court’s submission of Instruction No. 24A to the jury. “We review de novo whether the court erroneously instructed the jury on the applicable law.” Gonzales v. Duran,
Jury Instruction No. 24A stated as follows:
In this case, Mr. Plascencia claims that Mr. Taylor arrested him, but Mr. Taylor claims that he stopped or temporarily detained him. You must decide whether the encounter between Mr. Plascencia and Mr. Taylor was an investigative detention, or if it was, or at some point became, an arrest. In deciding what occurred, you should consider all relevant circumstances. There is no one fact that will determine whether the encounter was a stop or an arrest, but the key question is how intrusive the encounter was. In determining how intrusive the encounter was, you should consider: whether a firearm, handcuffs, or forceful techniques were used; the length of the detention; whether Mr. Plascencia was moved from one place to another; and any other facts you find relevant to the intrusiveness of the seizure.
Generally the use of firearms, handcuffs, or other forceful techniques exceeds the scope of a stop and enters into the realm of an arrest. However, even if such measures were used, if you find that Mr. Taylor used them because he reasonably believed that such measures were necessary to protect his own safety, then the use of such measures does not necessarily mean that Mr. Plascen-cia was arrested.
Generally the movement of a detained person from one place to another does not turn a stop into an arrest as long as the movement of the person is reasonably related to the goals of the stop.
Taylor argues that this instruction misstated the law because “use of force and the reasonableness of the force does [sic] not inform the question of whether the seizure was an arrest or an investigatory detention.” For the reasons stated in Section II.A, supra, we reject this argument.
Taylor also contends that Instruction 24A rests on contradictory Tenth Circuit law. He asserts that language from our en banc opinion in Cortez stating that the use of “firearms, handcuffs, and other forceful techniques generally exceed the scope of an investigative detention and enter the realm of an arrest,”
In his final challenge to Instruction 24A, Taylor argues that the district court impermissibly submitted a question of law — whether the detention was a Terry stop or an arrest — to the jury. In Gonzales v. Duran, we noted that “[ljegal questions are reserved to the courts.”
C
Taylor also seeks to challenge the sufficiency of the evidence underlying the jury’s verdict as to excessive force. However, he failed to file either a Rule 50(a) or 50(b) motion challenging the sufficiency of the evidence on this claim. Instead, Taylor affirmatively waived this issue. In his Rule 50 motion regarding Plascencia’s unreasonable seizure claim, Taylor admitted that “there are facts in dispute concerning the excessive force claim” and that the “issue cannot be resolved by the Court as a matter of law.”
“To preserve a sufficiency of the evidence claim for appellate review, a party must move for judgment as a matter of law ... at the close of the evidence.” Miller v. Eby Realty Group LLC,
Although Taylor failed to file a Rule 50 motion, Plascencia does not argue that Taylor has waived his sufficiency of the evidence claim. Our court has not yet determined whether the requirement that a sufficiency of the evidence claim be raised in a Rule 50(b) motion is an “inflexible claim-processing rule[ ]” or a jurisdictional limitation. Id. at 817 n. 15. We need not decide the issue here. Like jurisdictional rules, “[w]e may consider an issue of waiver sua sponte.” United States v. Mancera-Perez,
Taylor expressly conceded that judgment as a matter of law was improper as to Plascencia’s excessive force claim. We exercise our discretion to raise his waiver sua sponte in light of this concession, and decline to address the merits of his claim.
D
Taylor also appeals the denial of his motion for summary judgment asserting qualified immunity with respect to Plas-cencia’s unlawful seizure claim. Taylor did not file an interlocutory appeal of the denial, nor did he file a Rule 50(a) or (b)
Generally, a party may not “appeal an order denying summary judgment [on qualified immunity] after a full trial on the merits.” Ortiz v. Jordan, — U.S. -,
Taylor argues that the law was not clearly established that “the use of handcuffs indicated an arrest requiring probable cause.” We reject Taylor’s mischarac-terization of the district court’s ruling. The district court did not adopt a per se rule that the use of handcuffs constitutes an arrest. It instructed the jury that if Taylor used handcuffs “because he reasonably believed that such measures were necessary to protect his own safety, then the use of such measures does not necessarily mean that Mr. Plascencia was arrested.” This statement is consistent with clearly established Tenth Circuit law at the time of the arrest. See Shareef
Ill
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments: nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
. Plascencia’s complaint asserted multiple claims against Taylor, the City of St. George, and the St. George Police Department. Upon Taylor's motion for partial summary judgment, the district court dismissed the majority of Plascencia’s claims against Taylor, with the exception of Plascencia’s claims of unreasonable seizure and use of excessive force. Plas-cencia’s claims against the police department and several of his claims against the City were dismissed by stipulation before trial. The remaining claim against the City was dismissed when the district court granted its Rule 50 motion. Only the unreasonable seizure and excessive force claims are before us.
. The jury made two findings: Taylor violated Plascencia's Fourth Amendment rights (1) to be free from unreasonable seizures, and (2) to be free from use of excessive force. These are two separate theories of liability; therefore, we must determine whether the seizure was unreasonable as a separate question from whether there was excessive force. See Cortez,
Concurrence Opinion
concurring:
I concur fully in Judge Lucero’s opinion, which properly analyzes this case under controlling Tenth Circuit precedent. I write separately only to point out how the case could have been presented to the jury more simply, although the result would have been the same.
Taylor does not argue that he had probable cause to arrest Plascencia; and Plas-cencia does not argue, at least in his opening brief on appeal, that Taylor lacked reasonable suspicion. Also, Plascencia does not argue that the length of his detention was unreasonable. Given the absence of any dispute on those issues, all the jury had to determine regarding liability was: (1) Did Taylor have reason to believe that handcuffs were necessary as a safety precaution (a requirement for the use of handcuffs when the officer has reasonable suspicion but not probable cause) and (2) Did Taylor use unreasonable force in applying the handcuffs and otherwise restraining Plascencia? Instructions that set forth those two issues for the jury would have been much simpler than the ones that unnecessarily presented the issue of whether Plascencia was arrested or merely the subject of an investigative detention.